Author Nyariki, Maria G. Language en. Metadata Show full item record. Abstract I thank the Lord Almighty for the energy, health and enthusiasm to pursue the LLM degree despite the busy schedule in my life.follow link
PDF Kenya: Property, Inheritance, and Succession Rights
I am greatly indebted to my supervisor Honourable Justice William Musyoka for his dedication, guidance, patience, invaluable contribution, effort and encouragement when reviewing and discussing the work and ensuring that the thesis was well done in spite of his busy schedule. Once again I thank him for his valuable time and thoughts in supervising this work and ensuring the correct spellings, grammar and sentencing.
I am greatly indebted to my parents Prof. Marcel Ohanga Odhiambo and Mrs. However, patriarchal ideologies give shape to family life and defines it in terms of a bread winning husband and a domesticated wife or rather a housewife which in many cases is domesticated by the males despite the fact that some of these women may be making substantial contributions to the household income. Consequently men are attributed with greater economic power when it comes to determining how the family income and resources should be allocated.
Various communities and societies have their own set of rules despite the fact that inheritance is a universal concept. In Kenya however, we have Cap which is the law of succession act and which is of general application. There are other laws which apply such as Islamic laws and customary laws which are fortunately or unfortunately exempted by the Act but still apply informally in practice. During the colonial period, various laws used to apply and various statutes applied to the various communities at that time such as to Europeans, Africans, Hindus and Muslims as well.
The advent of independence saw an attempt at moving towards uniformity i. This culminated in the enactment of the law of succession act in This was done with the aim of bringing to an end differential treatment of people carried out during the colonial period. After independence, emphasis was on equality and the enactment of the law of succession act was an attempt at this equality. The succession of the estate of a deceased may however take two forms.
It may be by a will which is referred to as testate succession or can also be without a will which will thus result to intestate succession. Both forms are recognized by the law regulating matters of succession in Kenya. Intestate succession or rather intestacy occurs when a person dies without having made a will or the persons attempt to die testate fail upon the invalidation of his will by a court of law or the person revokes his will and subsequently dies without having made another will.
Intestacy may therefore be total or partial. It is said to be total where the intestate has left no valid will. It is partial where a person fails to include all his property in his otherwise valid will or part of the will is revoked or a person acquires property subsequent to the making of the will that is not ambulatory. The property not covered by the will is governed by the intestacy provisions or is subject to intestate succession. The rules of intestacy however apply to property that is capable of being disposed off by a will and do not apply to joint property which passes by survivorship or to nominations, life policies written in trust, or the subject of a dornatio mortis causa and therefore Cap makes provisions for both monogamous and polygamous situations.
The nature of devolution of property therefore depends on whether the deceased was polygamous or monogamous. The succession of the estate of a deceased could also be testate in that he dies leaving a valid will to direct how his estate should be devolved after his death. Despite the fact that this could be the case, women are still marginalized and affected by cultural practices and customary laws in great proportions.
This could occur where the deceased dies testate but in his will and due to cultural demands, excludes the girl child from his otherwise valid will. This shows that even though the deceased might die testate, women still face the risk of being disinherited and might as well have no place when it comes to succession. Customary laws in most communities are never fair and do not safeguard the rights of women whether the spouse, spouses or even the girl child.
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This therefore means that when referring to women in this context, the girl child is also included because in one way or another, she will end up being affected by the same issues already affecting and similar to those affecting their mothers. The Law of Succession Act makes various provisions to regulate inheritance matters for the various types of marriages.
The Act makes provisions for both Monogamous and polygamous types of marriages. The nature of devolution of property in intestate succession depends on whether the deceased was polygamous or monogamous. However, the rules of intestacy do not apply to the provisions of Section 32 of the Act. Most Kenyans undergo Christian marriages which of course are done under the African Christian Marriage and Divorce Act while many others choose to have Civil marriages conducted under the Marriage Act.
The marriages conducted under the two Acts are monogamous in nature and therefore subsequent women and children who will have been begotten outside such a marriage would be concubines and therefore illegitimate respectively and according to the provisions of the Act. Legislative intervention has however addressed the problem.
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An amendment to the Law of Succession Act now regards the subsequent women as a wife and the subsequent children as legitimate. The amendment can be attributed to the perception of the Traditional African society on the family unit. The law of succession act provides that subject to the provisions of Section 40 , where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to the personal and household effects of the deceased absolutely and a life interest in the whole residue of the net intestate estate provided that, if the surviving spouse is a widow, that interest shall determine upon he re-marriage to any person.
On the other hand, the Matrimonial Property Act provides that, a married woman has the same rights as a married man. These rights include to acquire, hold, administer, control, use and dispose of property whether movable or immovable, to enter into a contract and sue in her name. The Law of Succession Act provides that a spouse who makes a contribution towards the improvement of a non matrimonial property acquires a beneficial interest in the property equal to the contribution made by that spouse.
The above assertions were reiterated in the case of Karanja v Karanja  where the court recognized the fact that a wife could help her husband acquire property through direct financial contribution. The contribution of a wife as a housewife or rather a housekeeper is no less important and her duties of taking care of her husband and children cannot be overlooked. The dichotomy of continuum has also posed such a great challenge to succession matters.
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This has been between the western approaches and the traditional African approaches to issues concerning succession. The westernized jurisprudence puts matrimonial property within the limited confines of the family which is something that has been defined and interpreted by courts before.
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However, the court found that where discrimination is at stake, the constitution and human rights standards must prevail. In , the above challenge was addressed again. In the above case, the question was whether the court was to apply the Law of Succession Act or apply the customary law of the Maasai community.
The issue was clarified when Justice Rawal among other things held that any tenet of customary law which would abrogate the right of daughters to inheritance would be repugnant to justice and morality and could not be applied. The Law of Succession Act provides that where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
The Marriage Act provides that Islamic and customary marriages are presumed to be polygamous or that they are potentially polygamous. The Act further provides that a person in a polygamous marriage shall not contract another, monogamous marriage. Previously, women who were caught up in a polygamous labyrinth did not get anything in terms of inheritance of their deceased husbands which was very unfortunate.
Simpson J. This decision again bluntly women who were second wives to men who were already married under statute. In the matter of the Estate of Samuel Hopewell Gacharamu , the deceased had married his first wife under Gikuyu customary law. When he married a second wife, he married under the Kamba customary law although he again proceeded to marry the second wife under the Marriage Act. The issue that arose was as to who was the widow of the deceased and so entitled to inherit and it was also contentious as to what share should go to the two wives and children if both of them were declared widows.
The decision in the Estate of Samuel Hopewell Gacharamu was reiterated in the decision in the Estate of Duncan Kiiru Karuku when the court stated that for the purpose of intestate succession, despite the fact that the first marriage was conducted under statute, the other wives and their children were the wives and children of the deceased and were therefore entitled to inherit. The Act further provides for the mode of distribution. This seems to be a direct interpretation of Section 3 5 of the Law of Succession Act.
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